Newark USD | AR 4161.8, 4261.8,4361.8 Personnel
Family Care And Medical Leave
"Child" means a biological, adopted or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis as long as the child is under 18 years of age or an adult dependent child. (29 U.S.C. 2611; Government Code 12945.2)
"Parent" means a biological, foster or adoptive parent, a stepparent, a legal guardian, or another person who stood in loco parentis to the employee when the employee was a child. (29 U.S.C. 2611; Government Code 12945.2)
"Serious health condition" means an illness, injury, impairment or physical or mental condition that involves either:
1. Inpatient care in a hospital, hospice or residential health care facility, or
2. Continuing treatment or continuing supervision by a health care provider. (29 U.S.C. 2611; Government Code 12945.2)
"Instructional employee" means an employee whose principal function is to teach; instructional employees include athletic coaches, driving instructors, special education assistants and signers for the hearing impaired. The term does not include teacher assistants or aides, counselors, psychologists, curriculum specialists or other primarily noninstructional employees. (29 C.F.R. 800)
Any eligible employee who has served the district more than one continuous year shall be eligible to take unpaid family care and medical leave under the provisions of state and federal law.
Family care leave may be used for the following reasons:
1. Because of the birth of the employee's child, and in order to care for the child. (29 U.S.C. 2612; Government Code 12945.2)
2. Because of the placement of a child with the employee for foster care or in connection with the employee's adoption of the child. (29 U.S.C. 2612; Government Code 12945.2)
3. In order to care for the employee's child, parent or spouse with a serious health condition. (29 U.S.C. 2612; Government Code 12945.2)
4. Because of the employee's own serious health condition which makes the employee unable to perform the functions of his/her job, except for leave taken for disability on account of pregnancy, childbirth or related medical conditions. (29 U.S.C. 2612; Government Code 12945.2)
Terms of Leave
Family care leave shall not exceed 12 work weeks during any 12-month period. (29 U.S.C. 2612)
This 12-month period shall coincide with the fiscal year.
Leave taken pursuant to the state Family Care and Medical Leave Act shall run concurrently with leave taken pursuant to the federal Family and Medical Leave Act (FMLA), except for any leave taken under the FMLA for disability on account of pregnancy, childbirth, or related medical conditions. In addition to family care and medical leave, an employee may be entitled to take pregnancy disability leave of up to four months.During the otherwise unpaid portion of pregnancy disability leave, the employee may use any accrued vacation, sick time or other paid leave. (Government Code 12945, 12945.2)
Leave taken for the birth or placement of a child must be initiated within one year of the birth or placement of the child. Such leave shall not be taken intermittently or on a reduced leave schedule unless the district and the employee agree otherwise. (29 U.S.C. 2612)
If both parents of a child work for the district, their family care and medical leave related to the birth or placement of the child shall be limited to a total of 12 weeks. (Government Code 12945.2
During the period of family care and medical leave, the employee may elect to use his/her accrued vacation leave, other accrued time off, or any other paid or unpaid time off negotiated with the district.
Accrued sick leave may be used when the purpose of the family care and medical leave is one for which sick leave can be taken pursuant to collective bargaining agreements and/or Board policy. (Government Code 12945.2)
Requests, Advance Notice and Certification
The employee shall give the district at least 30 days' written advance notice of his/her need for family care and medical leave. If the employee learns of the need for this leave fewer than 30 days in advance, he/she shall provide such notice as soon as practicable. (29 U.S.C. 2612; Government Code 12945.2)
If leave is needed for a planned medical treatment or supervision, the employee shall make a reasonable effort to schedule the treatment or supervision to avoid disruption of district operations. This scheduling shall be subject to the health care provider's approval. (29 U.S.C. 2612; Government Code 12945.2)
An employee's request for family care and medical leave shall be supported by a certification from the health care provider of the person requiring care. This certification shall include all of the following:
1. The date on which the serious health condition began. (29 U.S.C. 2613; Government Code 12945.2)
2. The probable duration of the condition. (29 U.S.C. 2613; Government Code 12945.2)
3. The appropriate medical facts within the knowledge of the health care provider regarding the condition. (29 U.S.C. 2613)
4. If the employee is requesting leave because of his/her own serious health condition, the health care provider's certification that due to the serious health condition, the employee is unable to perform the functions of his/her job. (29 U.S.C. 2613; Government Code 12945.2)
5. If the employee is requesting leave to care for a child, spouse or parent who has a serious health condition, the certification shall also include the health care provider's: (29 U.S.C. 2613; Government Code 12945.2)
a. Estimate of the amount of time the health care provider believes the employee needs to care for the child, parent or spouse, and
b. Statement that the serious health condition warrants the participation of a family member to provide care during a period of the treatment or supervision of the child, parent or spouse.
If additional leave is needed when the time estimated by the health care provider expires, the district may require the employee to provide recertification as specified above. (29 U.S. Code 2613, Government Code 12945.2)
If the employee is requesting leave for intermittent treatment or is requesting leave on a reduced leave schedule for planned medical treatment, the certification must also state the medical necessity for the leave, the dates on which treatment is expected to be given, the duration of such treatment, and the expected duration of the leave. (29 U.S.C. 2613)
Intermittent/Reduced Work Schedule Leave
Leave related to the serious health condition of the employee or his/her child, parent or spouse may be taken intermittently or on a reduced work schedule when medically necessary; in such a case, the employee may be required:
1. To take the leave for periods of a particular duration, not to exceed the duration of the planned medical treatment, or
2. To transfer temporarily to a different job that has the equivalent pay and benefits but could better accommodate recurring periods of leave. (29 U.S.C. 2612, 2618)
If the person is employed chiefly in an instructional capacity and his/her requested leave would amount to more than 20 percent of the total number of working days during the period of planned medical treatment, the district may require the employee to choose one of the two options listed above.
Instructional Employees: Leaves Near the End of the Term
The district may require an instructional employee to continue taking a requested leave until the end of the term in any of the following situations: (29 U.S.C. 2618)
1. The instructional employee begins a leave of three or more weeks' duration more than five weeks before the end of a term and would subsequently return to work during the last three weeks of the term.
2. The instructional employee, for reasons other than his/her own serious health condition, begins a leave of more than two weeks' duration during the period that begins five weeks before the end of the term and would subsequently return to work during the last two weeks of the term.
3. The instructional employee, for reasons other than his/her own serious health condition, begins a leave of more than five days' duration during the period that begins three weeks before the end of the term.
Maintenance of Benefits
During the period of family care leave, the employee shall continue to be entitled to participate in the district's medical, dental and vision plan. (29 U.S.C 2614; Government Code 12945.2)
During the period of family care leave, the employee shall continue to be entitled to participate in life, disability and accident insurance plans, pension and retirement plans, supplemental unemployment benefit plans, and/or any other employee welfare benefit plan to the same extent and under the same conditions as apply to an unpaid leave taken for any other purpose. In the absence of these conditions, the employee shall continue to be entitled to participate in these plans and the district may, at its discretion, require the employee to pay the premium for periods not covered by accrued leave. (Government Code 12945.2)
Maintenance of Status
The employee shall retain his/her employee status with the district during the leave period, and the leave shall not constitute a break in service for purposes of longevity or seniority under any employee benefit plan or collective bargaining agreement. For purposes of layoff, recall, promotion, job assignment and seniority-related benefits such as vacation, the employee returning from family care leave shall return with no less seniority than he/she had when the leave began. (29 U.S.C. 2614; Government Code 12945.2)
Upon granting an employee's request for family care leave, the district shall guarantee to reinstate the employee in the same or a comparable position when the leave ends. (29 U.S.C. 2614; Government Code 12945.2)
The district may refuse to reinstate an employee returning from leave to the same or a comparable position if all of the following apply: (29 U.S.C. 2614, Government Code 12945.2)
1. The employee is a salaried "key employee" who is among the highest paid 10% of the district's employees who are employed within 75 miles of the employee's worksite;
2. The refusal is necessary to prevent substantial and grievous economic injury to district operations; and
3. The district informs the employee of its intent to refuse reinstatement at the time when it determines that the refusal is necessary, and the employee fails to immediately return to service.
An employee who takes leave has no greater right to reinstatement than if he/she had been continuously employed during the leave period. If the district reduces its work force during the leave period and the employee is laid off for legitimate reasons at that time, he/she is not entitled to reinstatement. (29 CFR 825.216)
The district shall not refuse to hire and shall not discharge, fine, suspend, expel or discriminate against any employee because he/she exercises the right to family care leave or because he/she gives information or testimony related to his/her or another person's family care leave in an inquiry related to family leave rights. (29 U.S.C. 2615, Government Code 12945.2)
In accordance with law, the district shall notify employees of their right to request family care leave.
When employees request family care and medical leave, the district shall provide them with notice detailing the specific expectations and obligations involved, including: (29 C.F.R. 825.301)
1. Whether the employee's paid leave will be substituted;
2. The requirements for initial medical certification and certification upon return;
3. Health benefit arrangements;
4. The employee's status as a "key employee," if applicable;
5. The employee's right to restoration to the same or comparable job; and
6. The employee's potential liability for health benefits should the employee not return to service.
Regulation NEWARK UNIFIED SCHOOL DISTRICT
approved: May 21, 1996 Newark, California